Citation Nr: 1524824
Decision Date: 06/10/15 Archive Date: 06/19/15
DOCKET NO. 13-19 010 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Entitlement to a waiver of recovery of an overpayment of non-service-connected pension benefits in the amount of $23,532.00.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Gordon, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1968 to January 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision issued in May 2012 by the Department of Veterans Affairs (VA) Committee on Waivers and Compromises (COW) of the Pension Center in Milwaukee, Wisconsin. At that time the Agency of Original Jurisdiction (AOJ) denied waiver of the Veteran's non-service-connected pension overpayment of $23,532.00.
In addition to the paper claims file, there is a Virtual VA and VBMS (the Veterans Benefits Management System) paperless claims file associated with the Veteran's claim. The documents in these files have been reviewed and considered as part of this appeal.
FINDING OF FACT
A June 2013 decision granted the Veteran's request for a waiver of overpayment of VA nonservice-connected pension benefits in the amount of $25,532.00.
CONCLUSION OF LAW
Because the June 2013 decision granted the Veteran's request for a waiver of overpayment of VA nonservice-connected pension benefits in the amount of $25,532.00, there remains no case or controversy over this issue affecting the provision of benefits by VA over which the Board may exercise jurisdiction. 38 U.S.C.A. §§ 511, 5107, 7104 (West 2014); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. 38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a).
One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 19.4. The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue. 38 C.F.R. § 20.101(d).
The Veteran contends that his overpayment of $23,532.00, in non-service-connected pension benefits, should be waived.
Overpayment(s) of VA benefits are subject to recovery if recovery is not waived. The law precludes waiver of recovery of an overpayment or waiver of collection of any indebtedness where any one of the following elements is found to exist: (1) fraud, (2) misrepresentation, (3) bad faith. 38 U.S.C.A. § 5302; 38 C.F.R. §§ 1.962, 1.965.
The Court has also held that, before adjudication of a waiver application, the lawfulness of a debt must first be determined. Schaper v. Derwinski, 1 Vet. App. 430, 434, 435 (1991). The VA General Counsel has reinforced this obligation by holding that, where the validity of a debt is challenged, that issue must be developed before the issue of entitlement to waiver of the debt can be considered. VAOPGCPREC 6-98.
In this case, although the Veteran has not actually articulated an argument that challenges the creation of his debt or the amount owed, the Board finds that the record reflects this debt was validly created, as it is undisputed that the Veteran failed to report he was in receipt of Social Security income. See June 2012 Notice of Disagreement. The record reflects that the Veteran began receiving nonservice-connected pension benefits on September 12, 2005. His entitlement rate was computed, in pertinent part, as an appellant with no income. Further, he was notified of this fact via a July 2006 notification letter. Moreover, this letter instructed the Veteran to report any income from any source, to include Social Security, and that an overpayment would likely result from failure to report the income.
As noted in correspondence sent to the Veteran in November 2011, the SSA informed VA that the Veteran and his dependent spouse became entitled to Social Security income benefits in January 2008; that VA would assume he and his spouse received their first payments in March 2008; and listed the amount of Social Security income they each had received during the pertinent period. As such, VA proposed to adjust the rate of nonservice-connected pension benefits for this period which would result in an overpayment he would have to pay. The correspondence also informed the Veteran to provide any information which showed this conclusion was incorrect. To date, the Veteran has not contested he was in receipt of Social Security income during this period or the amount thereof.
In view of the foregoing, the Board finds that the overpayment was validly created by the Veteran's failure to report the receipt of Social Security income, despite having been advised to fully disclose all sources of countable income to VA and that an overpayment would likely result from failure to report the income.
However, irrespective of the Board's finding that the overpayment was validly created, the Board points out that the Veteran's perfected appeal with respect to his request for a waiver of overpayment of VA nonservice-connected pension benefits in the amount of $25,532.00 was in fact granted in a subsequent decision dated in June 2013.
Under these circumstances, the Board finds that entitlement to waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $25, 532.00, which was formerly in appellate status prior to June 2013, has been granted by the decision of a lower adjudicative body, fully resolving the Veteran's appeal as to such claim. Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4. In the absence of any justiciable question, the appeal relating to entitlement to waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $25, 532.00 must be dismissed.
ORDER
The appeal as to the claim of entitlement to a waiver of recovery of an overpayment of VA nonservice-connected pension benefits in the amount of $25,532.00 is dismissed.
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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs